MAKING A WILL WHEN UNDER LOCKDOWN

INTRODUCTION

We are currently living in times
of uncertainty due to Covid-19. Hopefully, by the time this issue reaches you
India’s lockdown would have eased. However, it could also be extended or
re-enforced at any time. It is in times such as these that we realise that life
is so fragile and fleeting. This lockdown has also forced several of us to
consider making a Will. During these past 30 days, the author has drafted
several Wills for people who are concerned about what would happen if they
contracted the virus. Through this month’s feature, let us look at the unique
issues and challenges which one faces when drafting a Will during a lockdown.

DECODING
THE JARGON

Wills are usually associated with
a whole lot of jargon which make them appear very complex to the man on the
street. However, most of these legal words are used by legal professionals and
a person making a Will can avoid using them. However, it is beneficial to
understand the meaning of these words in order to understand various other
things. All or some of the following terms are normally involved in a Will:

(a) Testator / testatrix: A person who makes the Will. He
/ she is the person whose property is to be disposed of after his / her death
in accordance with the directions in the Will.

(b) Beneficiary / legatee: The person to whom the
property will pass under the Will. He is the person to whom the property of the
testator would be bequeathed under the Will.

(c) Estate: The property of the testator remaining after his
death. It consists of the sum total of such assets as are existing on the date
of the testator’s death. The estate may also increase or decrease after the
testator’s death due to the actions carried out by the executors. For example,
the executors may carry on the business previously run by the deceased in the
name of the estate.

(d) Executor / executrix: The person who would
administer the estate of the testator after his death in accordance with the
provisions of the Will. The executor is normally named in the Will itself. An
individual, limited company, partnership firm, etc., may be appointed as an
executor. In many cases, a bank is appointed as the executor of a Will. For all
legal and practical purposes, the executor acts as the legal representative of
the estate of the deceased. On the death of the testator, the property cannot
remain in a vacuum and hence the property immediately vests in the executor
till the time the directions contained in the Will are carried out and the
property is distributed to the beneficiaries.

(e) Bequest: The property / benefits which flow under the
Will from the testator’s estate to the beneficiary.

(f) Bequeath: The act of making a bequest.

(g) Witnesses: The persons who witnesses the signing
of the Will by the testator.

BACK
TO BASICS

First things first, making a Will
involves certain basics which one needs to remember. Any adult, owning some
sort of property or assets can and should make a Will. If a Will is not made,
then the personal succession law as applicable would take over. For instance, Hindus
would be governed by the Hindu Succession Act, 1956. Only adults of sane mind
can make a Will. Thus, anyone who is insane or is a lunatic, or has lost
control over his mental faculties cannot make a Will.

A Will is a document which
contains the last wishes of a person as regards the manner and mode of
disposition of his property. A person expresses his will as regards the
disposition of his property. The Indian Succession Act, 1925 (which governs the
making of Wills in India) defines a Will to mean ‘the legal declaration
of the intention of the testator with respect to his property which he desires
to be carried into effect after his death’. However, the intention manifests
only after the testator’s death, i.e., posthumous disposition of his property.
Till the testator is alive, the Will has no validity. He can dispose of all his
properties in a manner contrary to that stated in the Will and such action
would be totally valid.

For example, ‘A’ makes a lockdown
Will bequeathing all his properties to his brother. However, post the lockdown
he, during his lifetime itself, transfers all his properties to his son with
the effect that at the time of his death he is left with no assets. Such action
of the testator cannot be challenged by his brother on the ground that ‘A’ was
bound to follow the Will since the Will would take effect only after the death
of the testator. In this case, as the property bequeathed would not be in
existence, the bequest would fail. The Will can be revoked at any time by the
testator in his lifetime. Hence, it is advisable to at least make a basic Will.
It can always be revised once things improve.

The testamentary capacity of the
testator is paramount in case of a Will. If it is proved that he was of unsound
mind, then the Will would be treated as invalid. What is a ‘sound mind’ is a
question of fact and needs to be ascertained in each case. Hence, if a person
has been so impacted by the Covid-19 that his mental faculties are arrested,
then he cannot make a valid Will.

The most important element of a
Will is its date! The last Will of a deceased survives and hence the date
should be clearly mentioned on the Will.

LOCKDOWN
ISSUES

Let us now consider the singular
situations which arise in making a Will during a lockdown. People making a Will
may experience some or all of these in these testing times:

(a) Format: There is no particular format for making a Will.
Several persons have expressed apprehension that during the lockdown they are
unable to obtain a stamp paper, unable to print a document or unable to get
ledger paper, etc. A Will can be handwritten (provided it is legible
handwriting); it could be on a plain paper and it need not be on a stamp paper.
Thus, there should not be any problems from a format perspective.

(b) Witness: Section 63 of the Indian
Succession Act, 1925 requires that the Will should be attested by two or more
witnesses, each of whom has:

(i) seen the testator sign the Will or affix his mark; or

(ii) received from the testator a personal acknowledgement of his
signature or of the signature of such other person.

Each of the witnesses must sign
the Will in the presence of the testator. No particular form of attestation is
prescribed. It is important to note that the attesting witnesses need not
know the contents of the Will. All that they attest is the testator’s signature
and nothing more.

A problem which many people could
face is getting two Witnesses to witness the Will. Neighbours may be requested
to help out. However, what if the neighbours are reluctant to do so due to
social distancing issues, or in the case of persons living in bungalows? In
such cases, one’s domestic servants, maids, watchmen may be asked to act as
witnesses. They must, as witnesses, either write their name or at least affix
their thumb impression – left thumb for males and right thumb for females.

However, what can people do if
there are no servants also? In such a case, the adult family members of the
testator may be approached. However, a question which arises is that if such
members are beneficiaries under the Will, can they act as witnesses, too?
Generally speaking, No. The Indian Succession Act states that any bequest
(gift) to a witness of a Will is void. Thus, he who certifies the signing of
the Will should not be getting a bequest from the testator. However, there is a
twist to the above provision. This provision does not apply to Wills made by
Hindus, Sikhs, Jains and Buddhists and, hence, bequests made under their Wills
to attesting witnesses would be valid. Wills by Muslims are governed by their
Shariyat Law. Thus, the prohibition on gifts to witnesses applies only to Wills
made by Christians, Parsis, Jews, etc. Accordingly, any Will by a Hindu can
have a witness as a beneficiary.

A related question would be, can
an executor be a witness under the Will? Thus, if a person names his wife as
the executor, can she also be an attesting witness? The answer is, Yes. An
executor is the person who sets the Will in motion. It is the executor through
whom the deceased’s Will works. There is no bar for a person to be both an
executor of a Will and a witness of the very same Will. In fact, the Indian
Succession Act, 1925 expressly provides for the same. Accordingly, people of
all religions can have the executor as the witness.

To sum up, in the case of Hindus,
Sikhs, Jains and Buddhists, the witness can be a beneficiary and an executor.
However, in the case of Wills made by Christians, Parsis, Jews, etc., the
witness can be an executor but not a beneficiary.

Can witnesses practice social
distancing and yet witness the signing of the Will? Some English cases throw
some light on this issue. In Casson vs. Dade (1781) 28 ER 1010 a
testatrix signed her Will in her lawyer’s office and went to sit in her horse
carriage before the witnesses signed it. Since she could, through the
carriage’s window and the office’s window, see the witnesses signing, it was
held that the Will was valid.

This case is an example of where
the circumstances were enough to meet the witnessing requirements. This case
was followed by the UK Court of Protection in Re Clarke in
September, 2011 when a lasting power of attorney in the UK was held to
have been validly executed where the donor was in one room and the witnesses in
another, separated by a glass door. Even though the witness was sitting in the
adjacent room, there were clear glass doors with ‘Georgian bars’ between the
two rooms and it was held that the witness had a clear line of sight through
those glass doors. It was held that the donor would also have been able to see
the witness by means of the same line of sight through the glass doors.

As the Indian law stands today, a
witness cannot witness the execution of a will by Zoom or Skype. Scotland is
one of the places where this is possible. To deal with the witness issue, the
Law Society of Scotland has amended its guidance on witnessing the signing of a
Will. It allows the lawyer to arrange a video link with the client. If this can
be done, the solicitor can witness the client signing each page. The lawyer
should assess the capacity of the client and using his professional judgement,
consider whether any undue influence is being exerted on the client.

The signed Will can then be
returned to the solicitor by post. The lawyer can then sign as witness on the
receipt of the signed Will. This is a truly revolutionary step!

(c) Doctor’s Certificate: Quite
often, a doctor’s certificate as to the mental fitness of the deceased is
attached to a Will. This is especially so in the case of very old persons so as
to show that the Will is valid. The doctor would certify that the testator is a
person who is alert and able to understand what he is doing. A question which
now arises is how to obtain a doctor’s certificate if the testator cannot visit
the doctor? One option to consider if the doctor is being regularly consulted
is that a video conference could be arranged and if the doctor can issue the
certificate on that basis, then that would suffice. Of course, the doctor’s
certificate may not physically reach the testator but the same could be
collected once the lockdown eases and attached to the Will. It is advisable in
the case of very old / feeble persons that the certificate is obtained from a
neurophysician or a psychiatrist.

An alternative to this would be
to obtain a video recording of the Will execution process with the testator
reading out the entire Will. This helps show that he understands what he is
doing and is useful for very old persons who cannot obtain a medical
certificate.

(d) Enumerating all assets: It is generally preferable
that the Will be specific and enumerate all assets of the testator along with
account numbers, etc. so that it would help the beneficiaries in identifying
the assets. However, in a lockdown it may happen that such details are in the
office or in a bank locker and the testator is unable to access them and write
the details in the Will. In such a case, as many details as possible may be
given, or the Will may make a general bequest of the entire estate of the
testator as on the date of his death. On a separate note, it is always a good
idea to keep a complete inventory of assets along with details of nominations,
account numbers, addresses, etc., both at office and at home.

While bequests can be general or
specific, they cannot be so generic that the meaning itself is unascertainable.
For instance, a Will may state ‘I leave all my money to my wife’. This is a
generic bequest which is valid since it is possible to quantify what is
bequeathed. However, if the same Will states ‘I leave money to my wife’ then it
is not possible to ascertain how much money is bequeathed. In such an event,
the entire Will is void.

The Will must also create a
repertoire of digital assets which should enumerate all important passwords,
online accounts, e.g., emails, social media accounts, bank accounts, etc.

(e) Registration: Registration of
Wills is out of the question in a lockdown. However, registration is not
compulsory. Again, a video Will can act as an alternative.

(f) Bequest to minors : In the
case of nuclear families, there is a tendency to leave everything to one’s
spouse and in case of death of the spouse before the death of the testator, to
the children. However, in the case of minor children it is not advisable to
bequeath assets directly to them. In such situations, a trust is advisable. In
times such as these setting up a trust is not possible since it would not be
feasible to obtain a PAN, open a bank account / demat account, etc. What, then,
can one do? A trust under a Will may be considered, in which case the trust
comes into effect only when the Will is executed and no trust is set up at the
time of making the Will. Thus, the act of settling the assets into the trust is
pushed till when the Will is executed. This trust could own all the assets to
be bequeathed to the minors.

If at all assets are to be bequeathed
directly to minors, then a guardian should be appointed under the Will. In this
case, the Hindu Minority and Guardianship Act, 1956 lays down the
law relating to guardianship of Hindus and the powers and duties of the
guardians. A Hindu father who can act as the natural guardian of his legitimate
children can appoint a guardian by his Will. Such a guardian could be for the
minor and / or for his property. Such an appointment would be invalid if the
father dies before the mother, because in such a case the mother would take
over as the natural guardian. However, once the mother dies, and if she dies
without appointing a person as the guardian under her Will, then the father’s
testamentary guardian would be revived. The testamentary guardian is subjected to
a dual set of restrictions. Firstly, those specified in the Will appointing
him, and secondly, those contained in this Act which apply to natural
guardians. Thus, the testamentary guardian is subjected to the restrictions on
sale of immovable property just as a natural guardian would be. The rights of
the testamentary guardian would be the same as those of a natural guardian. In
case the minor is a girl, then the rights of the testamentary guardian would
end on her marriage.

(g) Living Will: A living Will is not recognised
in India. However, as per the Supreme Court’s decision in Common Cause
vs. UOI, WP (Civil) 215/2005 (SC), an Advanced Medical Directive is
possible. This can state as to when medical treatment may be withdrawn, or if
specific medical treatment that will have the effect of delaying the process of
death should be given. However, one of the stringent requirements of such a
document is the requirement of two independent witnesses and the directive
should be countersigned by a Jurisdictional Judicial Magistrate, First Class
(JMFC), so designated by the district judge concerned. This requirement would
not be possible in the case of a lockdown and hence, having an Advanced Medical
Directive is not possible till such time as normalcy returns.

(h) Hospital bed Wills: What happens in case a
person is unfortunate to contract the virus and is placed in a hospital
quarantine? Can such a person make a Will? The above peculiar issues would
apply to him also. As always, the biggest challenge would be getting two
witnesses. He could request the doctors / nurses treating him to help out. That
is the only way out for a patient in the isolation ward.

CONCLUSION

It is evident that a Will under
lockdown would throw up several unique issues. However, as explained above, a
solution exists for even the strangest of problems. An overarching question is,
should one adopt a DIY (Do It Yourself) approach or consult a professional for
preparing the Will? At the risk of sounding biased, I would always suggest consulting
a professional, especially when the Will is being executed during a lockdown.